Chancery Court for the Twentieth Judicial District Davidson County, Tennessee
Court of Appeals of Tennessee, Middle Section at Nashville
Leah Gilliam is a Tennessee resident who, in December 2010, requested and received the vanity license plate “69PWNDU” from the Tennessee Department of Revenue. She drove with this license plate until May 2021, when someone texted the Department of Revenue’s Chief of Staff to complain about the plate. The Department then revoked Gilliam’s license plate under a statute prohibiting plates “offensive to good taste and decency.” According to Gilliam’s lawyers, “69” references the 1969 moon landing and is not a sexual reference, while “PWNDU” is gaming term — rumored to have originated from a chess game in 1935 — meaning “owned” or, in this case, “owned you,” in the context of playing a video game. Gilliam sued, arguing that the statute is overbroad under the First Amendment. After the Davidson County Chancery Court ruled that the First Amendment did not apply because the plates were “government speech,” Gilliam appealed to the Tennessee Court of Appeals.
On October 19, 2022, FIRE filed an amicus curiae brief in the Tennessee Court of Appeals, Middle Division, in support of Gilliam. FIRE argues that the chancery court erred in ruling that the personalized messages on vanity license plates constitute government speech — a position at odds with the majority of other courts that have considered the First Amendment’s application to vanity license plates, including the Second Circuit, Eighth Circuit, the New Hampshire Supreme Court, the Maryland Court of Appeals, and severalotherFederalDistrictCourts. When a government speaks, it speaks with one voice. Vanity license plates are meant to and understood to convey messages from vehicles’ owners, not their governments — messages that are often at odds with other plates. If vanity license plates were the government speaking, the government would be reduced to “babbling prodigiously and incoherently.” The Chancery Court decision is an improper extension of a 2015 Supreme Court decision that specialty license plates are government speech; and is even further eroded by a recent Supreme Court case that warns courts to consider whether the message would be considered by the reader to be the government’s own message.
FIRE also argued that Tennessee’s statutory language, allowing Department of Revenue officials to choose what constitutes “good taste and decency” gives officials too much discretion to substitute their own opinions about what counts as “good taste” or “decent” speech. In FIRE’s decades of experience, broadly worded statutes like Tennessee’s lead to arbitrary and viewpoint discriminatory enforcement.